The theory on which five justices concluded that candidates for office have standing to challenge election rules is difficult—at best—to reconcile with the Court's hostility to legislative standing.
Courts aren't corrupt, judges are. We would not be better off without SCOTUS, which is a crucial institution required by the People in our Constitution. We'd be better off finally enacting legislation to better hold judges to the standard stated by the People in our Constitution: all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."
Good behavior necessarily means fulfilling, not violating, oaths to support and defend our Constitution. While many of the people who wrote or ratified our Constitution were still alive, Chief Justice John Marshall authored one of the most famous and influential SCOTUS opinions (Marbury v. Madison) in 1803 to explain and emphasize how and why “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” Declaring the supreme law of the land, making our Constitution the paramount law in the supreme law of the land, and requiring oaths to support our Constitution are the foundation of the rule of law in America. SCOTUS explained and emphasized that the People in our Constitution “direct the judges to take an oath to support” our Constitution because such “oath certainly applies, in an especial manner, to [judges’] conduct in their official character.” In Marbury, SCOTUS emphasized that the reason every “judge” must “swear to discharge his duties agreeably to the constitution of the United States” is that our “constitution forms” the primary “rule for their government.”
I might have agreed 10 years ago. Not now. The court was the least thought through part of the founders vision and the worst’analyzed. It has been responsible for the worst parts’of’Amerocan history. It is today the most dangerous weapon this awful regime has. We’d be better’off without it. Your argument seems to amount to saying that a court with good justices would be a good court. I no longer agree with
My argument is the same for judges as it is for presidents. My argument is what our Constitution says it should be.
The People expressly vested in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” All “Senators and Representatives” also are “bound by Oath or Affirmation, to support [our] Constitution.” Clearly and irrefutably, the People bound the members of Congress to support our Constitution by fulfilling their duty to make all laws that are necessary and proper to regulate all powers vested by our Constitution in any federal public servant, including the President, any subordinate executive officer and any judicial officer.
We have judges who violate their oaths for the same reason we have presidents and other executive officers who violate their oaths. We don't require our directly-elected representatives in Congress to actually fulfill their oaths to support our Constitution with all laws that are necessary and proper to govern the conduct of executive and judicial officers.
The People (in our Constitution) commanded that "[t]he President, Vice President and all civil Officers of the United States," (including judges) "shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes and Misdemeanors." But there's no reason legislation cannot be enacted so that they also can be impeached, convicted and removed for violating their oaths of office.
We need to stop pretending that judges cannot violate their oaths (or even commit high crimes or high misdemeanors) by means of their so-called rulings or so-called judgments. They clearly can and they definitely do. We need to stop pretending or presuming that impeachment and conviction should be political or performative processes instead of legal processes governed by law.
In a sense that is a semantic argument. However, a court system could be designed to be corrupt, which would make your statement false. That said, if a majority of justices on a Supreme Court are corrupt, then, for all practical purposes, so is the Court.
The Roberts Court has made it clear that we need major reform of the SCOTUS. Over the history of the US, the SCOTUS has made great, good, bad, and terrible decisions.
Prior to the Roberts Court decisions such as Dred Scott v. Sandford and Plessy v. Ferguson were held up as the worst of all decisions. In a few short years, Roberts, et al. have added more than one decision that not only belongs on that list, but that stand at the very top.
Last year, very conservative former appeals court judge Michael Luttig said that Trump v. United States is the worst decision ever made in US history. We are now seeing that play out as Trump, emboldened by what he sees as the SCOTUS having granted him carte blanche to do whatever he chooses to do without any risk of legal accountability, tramples the law and Constitution. Rather than placing some constraints on Trump, the SCOTUS majority has often allowed him to do things that are clearly illegal, overriding the Congress and its legitimate rights to make laws. Congress wrote laws preventing the president from firing people holding certain important positions without specific cause. The SCOTUS, ignoring those laws, gave Trump the green light, which supports Luttig's contention that Chief Justice Roberts is "leading this country down the path of lawlessness."
Lest anyone think Judge Luttig has become a liberal, he supports another SCOTUS decision that I believe belongs right next to Trump v. United States. That is the Citizens United decision, which has thoroughly corrupted our election fundraising. My choice of the all-time worst decisions includes District of Columbia v. Heller, in which Justice Scalia effectively ignored the wording of the Second Amendment in his conclusion and found what no other court had ever found -- a personal right to possess firearms.
Trump v. United States has empowered a fascist to pursue the destruction of democracy and the rule of law. In my opinion this decision is indefensible.
Citizens United has allowed the wealthy to attempt to and sometimes succeed in buying elections and it has made it necessary for some elected officials to do never ending fundraising and others to become utterly corrupt. This is another indefensible decision.
District of Columbia v. Heller has contributed to the bloodbath that exists in the US and further SCOTUS craziness has helped to erase the idea that Scalia naively suggested that supposedly allowed some regulation of guns. Since Heller, the SCOTUS has gone where Scalia had refused to go. DC v. Heller is not quite as bad as the two above, but it was poorly reasoned and tragically unwise. The limitations that Scalia suggested were possible are of no interest to the Roberts Court of 2026.
Semantics is when people speak of "courts" when they really mean individual judges. Take, for example, what people call "the Roberts' Court." That "court" is very different today from what it was when Justices Ginsburg and Breyer were on it.
Focusing corrective measures on corrupt judges is how we ensure courts perform their institutional function. That's the point of Article III emphasizing that the term of office of judges is during good behavior.
Even if "judge Michael Luttig said that Trump v. United States is the worst decision ever made in US history," it really isn't. Far worse is the decision to exaggerate the legal significance of the judgment/opinion of six mere judges in Trump v. United States. That so-called judgment and the so-called supporting opinion should be ridiculed, mocked, derided, and even flouted by federal and state officials.
Nobody who is anybody should take that so-called decision of SCOTUS seriously except to show that it does not and cannot (consistent with our Constitution) mean what you said Judge Luttig said. Consider, for example, "Our First President Strongly Supported Laws Restraining All Subsequent Presidents" https://blackcollarcrime.substack.com/p/our-first-president-strongly-supported?r=30ufvh
We should always bear in mind the observation by the French writer and diplomat Joseph de Maistre in 1811, "Every country has the government it deserves." That is nowhere more true than in the U.S. in which We the People ordained and established our own Constitution in 1788. If we fail to support and defend our own Constitution, the fault is largely our own.
I agree! The “Bost” ruling illustrates the Roberts Court’s contempt for majority rule, allowing obvious “losers” to prick, prick prick away IF they have enough MONEY to sue, sue SUE!
Gorsuch's opinion in the Fourth Amendment case sanctimoniously (shocking) noted how he wanted to use a neutral approach and not just allow the decision to be determined by the whims of the justices. That's all they did after Katz v. U.S., after all! He cited a common law principle. The common law is judge-made. So, it is somewhat based on the whims of judges.
I'm somewhat confused. There may be special cases, such as the ex officio member in the Kennedy case. But overall legislative standing involves a legislator. The idea, I thought, was that one legislator shouldn't speak for the legislature. OTOH, a candidate, though their interest might be too weak to warrant standing, has an individual interest. It is their campaign alone.
Yes, Jackson, for instance, argued that the people overall, the voters, also had an interest. She might be right. Still, of the two, I think a candidate at least has a better argument.
The Court’s hostility to legislative standing runs well past individual members. As for the individual candidate, the point of Bost is to allow standing even in cases in which there is no concrete, individualized harm to that specific candidate—because of his more general interest in “a fair process.” At that level of generality, the hostility to legislative standing seems much harder to defend.
How on earth do we preserve the Republic and the Constitution with a group of SCJ hellbent on destroying it? They are destroying our legislative branches' power ahead of the probable change in majority of Congress in November's midterm election. Congress must make the necessary changes to the SC to stop the biased judicial coup, preferably now, but definitely after the midterms.
"...then that means that the initial assignment of the majority opinions in the six remaining cases (including, as most relevant here, the Louisiana redistricting cases) went to a Republican appointee."
You have nothing to fear, Beth. Roberts has assured us that they are merely neutral umpires calling balls and strikes, not Republican or Democratic judges, but mere humble servants of the American people, doing their best to determine the law, with no agendas, predetermined outcomes, ideologies or biases. Roberts has also assured us that each Justice might possibly maybe consider occasionally thinking about if SCOTUS' self created and unenforceable code of conduct should be consulted. Boy, I feel so much better having written this. #Sarcasm.
Q: Assuming a REPRESENTATIVE as plaintiff. Does Bost open the door a crack to enforce Section 2 of the 14th AM, most recently denied by the DC Circuit in Citizens for Constitutional Integrity v Census Bureau (With a Wilkins J concurrence saying it could happen if standing found.) ?
This decision follows on Bush v. Gore in favoring the 14th amendment rights of (some) candidates over those of the electorate, so it's unlikely to help there. As Steve notes, it's also doctrinally incoherent, like a system of logic where anything can be proved by exploiting inconsistencies.
I'd also identify Bush v. Gore as an inflection points of sorts where SCOTUS really took on in earnest inventing out of whole cloth new doctrines disrespecting the legislature.
It seems right that individual legislators ought not be able to challenge laws they believe dilute their authority (line item veto), but it seems problematic that they cannot sue the executive branch for failing to observe laws in ways that dilute their power. In the first case, they cannot sue always persuade a majority to change the law. But in the second case, it’s like the Court is telling lawmakers they have to persuade a majority to pass a new law to enforce one already on the books. If no one else has standing, the law is meaningless without more congressional action. Doesn’t seem right.
Superb analysis of Bost opinions with legal, historical, political context. We are in this together. No Kings/Queens/Shahs. Peace. Christopher and family
Justice Kagan voted with the majority. Of the three justices appointed by Democratic presidents, Kagan is the most likely to join questionable decisions.
If I knew nothing about this case or how the justices voted except that Kagan was with the five, my guess would be the Chief Justice wrote the opinion, Jackson and Sotomayor were in one of the groups of two and Alito and Thomas were the other two. I haven't looked that up yet, but the only other justice I would think could be a part of a two grouping would be Gorsuch. But, then, I would be at a loss to guess who wasn't in that grouping -- Alito or Thomas. I have to go out now, but when I get home I will look up the vote breakdown. Will I be surprised?
Truthfully I only understood the Supreme Court is not alining itself to previous decisions. If there was more someone would like to explain to me I would appreciate it. 😁
It seems clear that the current SCOTUS is out of step with Constitution. If the framers had believed in the Unitary Executive, it seems likely they would have created the Executive and described its powers in Article I, not Article II. I think the fact that the Congress has the power of oversight of the Executive branch and can, at least theoretically, remove a sitting president, renders the Unitary Executive's theory of presidential power empty.
In Marbury v. Madison, the Chief Justice essentially seized power that the Constitution had not given the SCOTUS. On one level that makes sense; there does seem to be a need to have a way to ultimately resolve difficult legal and constitutional questions. While I hesitate to write this in light of what the US Congress has done to itself by endlessly ceding power to the Executive and the reality of how divided this country is today, I do wonder if a constitutional amendment allowing a super majority of Congress to overrule the SCOTUS would make sense. No, I'm no pretending that amendments are likely or even possible in our current environment. However, if Congress passes laws such as the ones that SCOTUS ignored allowing Trump to fire legally protected individuals, then why would either party oppose an amendment protecting the powers of the legislature? I don't think the Democrats would, but who knows about the GOP -- it barely exists as an entity separate from the wishes of Trump.
Personally, the greatest weakness I see in this country is the electorate. November 5, 2024, demonstrated to me conclusively that our electorate in general is simply not up to the task of responsibly supporting democracy. Ignorance is a huge problem. Most Americans are extremely poorly informed about history, political science, and economics. The 2024 election also revealed an electorate that, in the absence of adequate knowledge and engagement in the system, can be swayed by wishful thinking. Relatively few voters last year had any real understanding of why and how we had faced post-pandemic inflation. Instead, they foolishly chose to blame the incumbent president and then compound their error by choosing to believe the frankly ridiculous promises of the most notorious liar in American political history. That hasn't changed. I can easily imagine a situation in which the Democrats take control of the House in 2027, wins majorities in both houses as well as the presidency in 2028 and then four years later after four years of Republicans obstructing the Democrats at every turn, the voters elect another right wing crazy to be president in 2032.
The Democrats' success in special and gubernatorial elections in 2025 were not, I believe what many Democrats want them to be. The Democratic Party is historically unpopular and disrespected. I am a life-long Democrat, but today I have no confidence in a party that is satisfied with the weak leadership of Chuck Schumer and Hakeem Jeffries. Schumer's idea of fighting for democracy in the face of an existential threat is to send a "sternly worded letter" to Trump. Both Schumer and Jeffries showed their weakness and lack of foresight by failing to give Zohran Mamdani the respect and support he deserved. Democratic congressional leadership is simply not up to the task before it. Once again, the electorate is at fault. Democrats don't have to elect weak candidates and Republican voters don't have to elect fascists, authoritarians, and absolute nut jobs. But they do.
"I do wonder if a constitutional amendment allowing a super majority of Congress to overrule the SCOTUS would make sense."
Many members of Congress have little or no understanding of the Constitution, or no respect for it. At least the Supreme Court justices are knowledgeable in that regard, even though some of them refuse to be impartial.
Given the polarized state of our society, a super-majority of Congress agreeing to override the Supreme Court would probably never happen anyway. There are obvious problems with our government, but lacking a benevolent higher being controlling things, it's not clear to me that there's a better approach. As you indicated, I think the problem ultimately stems from a lack of civics education and a lack of respect for the Constitution among the people.
John, I believe a lack of respect for the Constitution has also infected the six members of the extreme right wing majority. In his book, "Worse than Nothing," constitutional scholar Erwin Chemerinsky makes a compelling case the "Originalism" is worse than having no theory of jurisprudence at all. I consider "Textualism" to be similarly worthless and fraudulent. Those who claim to believe that decisions should be made on the basis of originalism or textualism frequently abandon them in order to arrive at decisions that fit their own desired outcomes. However, using originalism is no better than having no theory of constitutional jurisprudence at all, and Chemerinsky gives many examples of the SCOTUS ostensibly applying originalism, but arriving at a decidedly non-originalist decision. The same is true for textualism.
Textualism requires that the justices take into account the actual words used in the Constitution and their meanings at the time they were written. It should go without saying that the language has changed greatly since the late 1700s and pretending that we understand today the precise meaning of words used 2-1/2 centuries ago is problematic. The right wing justices have also argued that we not consider the "intent" of what was written, but we repeatedly see them doing that when it suits their purposes.
Relying on words that were written so long ago and considering them in a bubble that doesn't take into account the huge changes in society and our sensibilities since then leads to decisions that make little sense in the modern world.
In 2025, very conservative* former appeals court judge Michael Luttig offered his opinion of what the Roberts Court is doing. He said that he considers Roberts to be a friend, but that the Roberts Court "is leading this country down he path of lawlessness." He added that he considers Trump v. United States to be the single worst SCOTUS decision in our entire history. The framers made it amply clear that they were creating a secular government, but Alito, Barrett, and the other religious zealot are trying to change that.
Thanks for your reply. I agree with much of what you wrote; it's just that I think the main problem is a lack of understanding of and respect for the Constitution among voters, politicians and (some) Supreme Court justices. Free speech is a good example, as many people at both ends of the political spectrum don't respect First Amendment speech rights and don't seem to appreciate their importance.
But I doubt that there's another way to structure government that would be much better at avoiding the problems we're facing, apart from one or two specific modifications (e.g., the electoral college).
I'm not a legal scholar, but I agree that pure originalism and pure textualism are inappropriate, though we of course need to consider the original intentions and the meaning of the words, otherwise we would be ignoring the Constitution (or laws) altogether, which would lead to an even worse mess.
My sense of the problem goes back many years (decades) and it has gotten worse. Everything good and bad can depend on the quality of the electorate. When I was in college, majoring in political science, I began engaging average voters in conversations about politics. Many of the people I engaged with were university students. What I discovered early on was the severe lack of knowledge about all the relevant topics and issues and a significant lack of interest in knowing and understanding more. My goal was to move people in the direction of being more involved and in the process in learning more of what they needed to know in order to voter responsibly.
I used to joke that I voted 5 or 6 times in every election, because I convinced 4 or 5 to 1) vote when they hadn't planned to vote and 2) to vote for candidates who represented their own best interests and not those of their parents, which was common among young people who either didn't vote or had adopted the political positions and party of their parents.
Today, he situation is far worse. The people most in need of change -- Trump voters -- generally refuse to even discuss the issues. My favorite quote of all time came from my neighbor back in 2020 as we neared the presidential election. I knew that Donnie (he’s dead now, so there is no risk in providing his first name) had voted for Trump in 2016 and that his number one and possibly only issue was guns. He never went anywhere without his handgun on his hip and he was convinced that the Democrats were going to take his guns away. I was prepared to help him understand that there was no danger of that happening and to try to get him to realize that on virtually every other issue Trump was bad for him.
Donnie was a nice guy. He was kind and generous and had a wonderful symbiotic relationship with another of my neighbors, an elderly woman in her 80s. Laurel Ann, offered Donnie a place to live and in return he helped her with her gardening and other things. She despised Trump, so they didn’t discuss politics.
Donnie and I started to talk and I began by laying out some facts that made it clear that Donnie’s situation would be hurt by all of Trump’s policies apart from the gun issue. After some initial comments from me, Donnie interrupted me and said, “You obviously know a lot, so I’m not going to talk to you.”
That ended my efforts. Since most Trump voters are “low information” voters and many are not overly intelligent, they are as reluctant to discuss politics as was Donnie.
In 2024, everything that any half-way intelligent person needed to know to reject voting for Trump was already well and widely known. We had seen his performance in his first term and how that had ended up on January 6, 2021. The Washington Post had tracked Trump’s lies and compiled a list of over 30,000 lies and misleading states in four years. His complete lack of truthfulness was documented as was the judgment against him for sexually assaulting E. Jean Carroll. In any normal, healthy democracy Donald Trump would never get the nomination to lead the country.
Trump made a series of ridiculous “on day one” promises that no reasonable person should have believed at all. Few Americans know much about economics or what causes inflation and who or what is responsible for it. It is very likely that almost no average voters knew that inflation had not been limited to the US and that it was worse in Europe, which should have been a hint that it wasn’t Joe Biden’s fault. I’ll stop here with the observation that no informed voter should have believed that Trump would tame inflation or only deport the “worst of the worst” immigrants. Wishful thinking, not rational thought determined millions of voters and resulted in the most irresponsible elections results in our history.
The wider problem is that when ill- or mis-informed voters cast mindless, irresponsible votes, we end up not just with a criminal as president, but countless Republicans in the House and Senate who care nothing for the well-being of their constituents. Electing bad presidents and senators means the appointment of bad judges and justices. What that means is that the real problem in this country is not Trump or his lawless sycophants. It’s not Republicans who aid and abet Trump. And it’s not the six ultra radicals on the SCOTUS. The real problem is the electorate. And of the four – Trump, Republicans, the SCOTUS, and the electorate – the most difficult one to fix is the electorate, in part because voters have to want to be better informed and be willing to expend the effort to achieve that.
My final words in this overly long comment are that the overwhelming number of American voters have no desire to spend the time needed to improve their knowledge and understanding, which would lead to more responsible voting, better candidates elected, and a vibrant democracy.
Sadly, we are showing the world the real makeup of the USA, personally I fear this will be impossible to "recover" from. Additionally, with the slow implosion of the Internet, I can't see the people returning to the libraries for truth.
"Sadly, we are showing the world the real makeup of the USA..."
A Canadian news host on CBC made a comment that I think is important. David Cochrane, host of CBC News Network’s daily “Power & Politics” said:
“America isn’t the way it is because [Trump is] president. He’s president because America is the way it is.”
One of my long-time gripes has been about "American Exceptionalism." To me, America is just another country. Sometimes is does good and sometimes bad. Because we are a large, wealthy country our actions may have a far wider impact than the actions of smaller countries and we have chosen to involve ourselves in the affairs of other countries to a greater extent than other countries. And it is precisely some of those actions that are among our very worst deeds. Going way back we have the US engaged in the overthrow of Mosaddegh in Iran. The situation in Iran today can be traced back to that despicable act, which was carried out in order to benefit our oil companies. Similarly, we were involved in the overthrow and death of another democratically elected national leader -- Allende in Chile. We have never been a consistent respecter the democratic elections in other countries. What we did in Vietnam, Iraq, and Afghanistan are three other examples of our shameful history. (I won't go all the way back to the creation of this country whose foundation was built on land theft, treaty breaking, genocide, and slavery. So that I'm not accused of ignoring any of the good things we've done, there is WWII, which is included more bad deeds as well as good. Locking up the Japanese Americans and stealing their belongings doesn't fit in a positive category. The Marshall Plan, creation of the UN, which has been followed by a refusal of the US to agree to any accountability by international organizations such as the ICC.
Some of what Trump is doing today is not that different from things we've done in the past. The major difference is that despite his bringing peace to 1,004 conflicts (derisive laughter), there are no positive acts that can be attributed to Trump. And one thing we can be certain of it that Trump never does anything to benefit others, unless the primary beneficiary is Trump himself.
The idea of American Exceptionalism is, sadly, the product of arrogant delusion. David Cochrane, quoted above, is absolutely right and perhaps the major contributing factor to the truth of his statement is the pathetic condition of our electorate. We have an electorate that is woefully educated on a wide range of issues that determine the responsibility of our voting and quality of the people we elect. Today, after a year of Trump's violence, cruelty, and lawlessness, the most common response I get when I try to engage people in political discussions is, "I just don't want to think about it." Many of those people are nurses and doctors who should be intelligent enough to understand the costs of ignoring our current situation.
I've got to stop. Another too long comment, but this represents only a fraction of what I have to say about Trump, voters, and American Esceptionalism. My apologies. (Although everyone has access to TLDR.
I like your textual arguments against a unitary executive!
Congress does have power to overturn an unconstitutional ruling, by passing a law that complies with the text & says the opposite of the ruling. Some are trickier than others but they could end CitizensUnited by passing 100% public campaign funding.
Still reading your YLR note, slow but getting there...
But why does anyone cite Luther v Borden, 48 US 1 (1849)? The Court blew an easy one.
When a state breaks up into two factions with competing governments, biasing the state courts toward whichever one they’re in, it no longer meets the standard required for statehood. It is now governed by Congress directly under Article IV §3’s Territory and Property clause, though they should probably just order the territory to hold another election to decide since only that can restore it to statehood. If the factions refuse to reconcile after that, Congress must consider breaking it up into two states.
If none of this occurs to Congress, a US court must decide the relevant constitutional question, holding Territory and Property is the relevant clause, then ordering Congress to deal with it and maybe hinting about another election.
We feel a sudden reckless urge to respond to some of the Luther Court’s stream of excuses for failing to read plain text.
"[T]he President must, of necessity, decide which is the government and which party is unlawfully arrayed against it before he can perform the duty imposed upon him by the act of Congress."
That’s not the president’s job.
"[I]f this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time were nullities, its taxes wrongfully collected, its salaries and compensation to its officers illegally paid, its public accounts improperly settled, and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not, in some cases, as criminals."
It is that way sometimes. Checks and balances.
" In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice."
False. If the Senate declines to consent, the president cannot override them. BTW, foreign and domestic are hardly analogous. The people of the United States are the source of all sovereignty.
"[I]t would be difficult, we think, to point out any other hands in which this power would be more safe…And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide."
First clue: A CJ knows the people may not choose presidents. Abdication cloaked in creepy royalist hyperbole.
"After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right?"
The US courts decide constitutional questions. The Supreme Court reviews them.
"If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavouring to maintain."
The fact that the president can be wrong is as good a reason as any not to commit troops to presidential command prematurely.
"If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order."
Here's the part of Chief Justice Roberts' rationale that really struck a chord for me: "Thus, the long-shot and shoo-in alike would suffer harm if a State chose to conduct its election by, say, flipping a coin. The result of such an election would not reflect the will of the people, and the candidates would lose the opportunity to compete for the people’s support. So too, similar harms would result from less dramatic departures—for example, if a State decided to discard a random 10% of cast votes. Whether these decisions help, hurt, or have no effect on a candidate’s electoral prospects, they deprive the candidate of a fair process and an accurate result."
How is the evil in Bost, "an election would not reflect the will of the people" different differ from the effects of a gerrymander that assures that one group of people, despite living in a reasonably contiguous area, will be assigned to multiple districts to assure that their collective will can never control the outcome of an election. It appears that this sets a precedent that rigging an election on the front-end is constitutional, but choosing a mechanism that may rig it on the back end may be actionable.
I have neither the time nor the resources to go back through the gerrymander cases to see whether the Bost rationale can be reconciled with existing gerrymander jurisprudence. It seems quite clear, though, that it's a rhetorical loser.
To clarify, I understand the distinction between standing and justiciability. But the original deference to state control over elections encompassed both the making of districts and the manner of conducting elections. The debates show that Madison and other delegates was quite aware that states were capable of manipulating internal rules or districts to control the selection of legislators -- an insight that Virginia antifederalists would soon confirm when Virginia drew districts for the 1789 elections that carried Madison back to the national legislature. The report of the Committee on Reconstruction plainly shows that the framers of the 14th Amendment expected that the vote freed slaves would provide a counterweight to that of the secessionists and their sympathizers and would prevent the return to power of those who controlled Antebellum Southern politics. Providing means to assure that results fairly reflect the diverse interests within every state has always been a challenge and has always been essential to assembling a national legislature that reflects the diversity of the American people and, therefore, can both strike compromises acceptable to the majority of Americans and serve to check and balance the other branches of government. Chief Justice Roberts seems to intimate in Bost more than that a candidate has standing, but also that rules governing procedures to collect the vote differ from those involving how votes are aggregated by district. The injury is the same in both cases, and the ancient debates over the purposes of elections and the ways that elections safeguard the Republic lay down principles that can inform adjudication in both cases. The difficulty presented by the Bost rationale seems to me likely to be both telling and real.
re: Bost v Illinois Bd. of Elections, 607 US ___ (2026)
Illinois law defines an election as primarily voters’ conduct. Their acts of casting votes & submitting these to government are the election. Tabulation & certification are government’s post-electoral functions. Because USPS is government its receipt is receipt; since delivering posted mail is its governance function, it’s presumed the talliers will receive it. The two-week time limit is for efficiency and regularity.
Article II§1 confirms this. Each state’s electors cast their votes for president & VP, tally these in two lists, & send them to the Senate. The election concludes. (No state certification is expressed, & since it’s a US election a state law requiring state certification can’t affect the result or when the election ends.) Congress receives, tallies, & certifies the ballots as post-electoral functions. When they resolve a tie or plurality it’s from among the top 2 or top 3 b/c those were the election’s results.
BTW, I actually agree with Mr. John Roberts, CJ, on Bost.
Amendment I’s Petition clause makes no exceptions, expressing government may create no circumstance in which its action can aggrieve a person w/o affording a manner for seeking redress. And Roberts makes the critical point: An election can’t be rerun. Few acts of governance are final, but finality doctrine seems consistent (you may know of exceptions I don’t).
The availability of appeal bars suing a court on the merits of a decision. Finality hasn't obtained.
Double jeopardy, res judicata & collateral estoppel cover the finality of one stage of a case. A trial court’s decision may be appealable but as far as the trial stage, it's final.
Ex post facto laws are prohibited because it’s too late to change relevant conduct to comply with them. The conduct is already final.
An election is final. No action can correct its conduct once it concludes. The only time a candidate can object is beforehand. Standing must account for finality. If a person demonstrates an interest in a fair result by registering as a candidate, that action has to be enough.
Another election won’t be this election. While for some laws, rules, or practices it may be difficult to imagine a person proximately affected, electoral laws, rules, & practices are the opposite. They affect EVERY candidate proximately. A candidate for office A in jurisdiction C in election year E has particular interests in office A, jurisdiction C, year E, their combination, & their combination with that candidate’s own career, so unfairness in election ACE a particular injury.
Office A is particular. A US senator differs from a mayor in powers vested, resources available, and so on. And a candidate’s personality and circumstances might better suit them for one office than another.
Jurisdiction C is particular, its combination with Office A more so. A vital issue for a US senator from New York may not matter to a US senator from Louisiana, and may not even be on the radar of the mayor of New Orleans.
Election year E is particular. The matters the NYS Senate had to legislate in 1976 differed from those facing them in 1960, & since rules, the NYS Senate’s composition, & other variables also differed, a person who’d seek that office in 1960 might not have in 1976 even with a better chance of winning.
The stage of a candidate’s career coincides with A + C + E in a particular manner. Their level of name recognition, their party’s importance, & the breadth of support for their policy positions are among the variables. An example from history: After his 1847-49 term in the House, the legal advice of Mr. Abraham Lincoln was sought in major cases. He argued before the Supreme Court. Elected to the Illinois Senate in 1854 he declined to take his seat, choosing instead to run for the US Senate. He lost. In 1858 he ran again & lost again, but his powerful performance that year in debates against incumbent Mr. Stephen Douglas made him a viable presidential candidate in 1860. His interest in the 1860 presidential election included the office’s particular powers and mandates when the question of slavery had reached a boiling point, Southerners were talking secession - & at that point in his career running was viable, winning possible, & he had no other commitment.
Finality isn’t usually relevant in a constitutionality challenge, whether the filer is a legislator or a member of the public. Spending impounded funds later isn’t as good as spending them on time but the basic job can still be done. Money improperly expended can be clawed back. Either corrects the usurpation & can redress either grievance. (Of course, not everything can be clawed back. Exercising the war power kills people. But Congress’ own abdication is a factor there. They’ve had time to correct it.)
In Raines v Byrd the legislators had no standing because they hold power to serve their constituents, not to personally enjoy. Once Mr. Clinton aggrieved people with the veto it was held to violate Presentment, a separation of powers holding. Candidates run to ultimately serve, but until the constituents decide it’s a personal competition for their votes.
All the Bost decision is is another in a long list of examples of the courts corruption. The country would be much better off without the court
Courts aren't corrupt, judges are. We would not be better off without SCOTUS, which is a crucial institution required by the People in our Constitution. We'd be better off finally enacting legislation to better hold judges to the standard stated by the People in our Constitution: all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour."
Good behavior necessarily means fulfilling, not violating, oaths to support and defend our Constitution. While many of the people who wrote or ratified our Constitution were still alive, Chief Justice John Marshall authored one of the most famous and influential SCOTUS opinions (Marbury v. Madison) in 1803 to explain and emphasize how and why “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” Declaring the supreme law of the land, making our Constitution the paramount law in the supreme law of the land, and requiring oaths to support our Constitution are the foundation of the rule of law in America. SCOTUS explained and emphasized that the People in our Constitution “direct the judges to take an oath to support” our Constitution because such “oath certainly applies, in an especial manner, to [judges’] conduct in their official character.” In Marbury, SCOTUS emphasized that the reason every “judge” must “swear to discharge his duties agreeably to the constitution of the United States” is that our “constitution forms” the primary “rule for their government.”
I might have agreed 10 years ago. Not now. The court was the least thought through part of the founders vision and the worst’analyzed. It has been responsible for the worst parts’of’Amerocan history. It is today the most dangerous weapon this awful regime has. We’d be better’off without it. Your argument seems to amount to saying that a court with good justices would be a good court. I no longer agree with
My argument is the same for judges as it is for presidents. My argument is what our Constitution says it should be.
The People expressly vested in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” All “Senators and Representatives” also are “bound by Oath or Affirmation, to support [our] Constitution.” Clearly and irrefutably, the People bound the members of Congress to support our Constitution by fulfilling their duty to make all laws that are necessary and proper to regulate all powers vested by our Constitution in any federal public servant, including the President, any subordinate executive officer and any judicial officer.
We have judges who violate their oaths for the same reason we have presidents and other executive officers who violate their oaths. We don't require our directly-elected representatives in Congress to actually fulfill their oaths to support our Constitution with all laws that are necessary and proper to govern the conduct of executive and judicial officers.
The People (in our Constitution) commanded that "[t]he President, Vice President and all civil Officers of the United States," (including judges) "shall be removed from Office on Impeachment for, and Conviction of" any "high Crimes and Misdemeanors." But there's no reason legislation cannot be enacted so that they also can be impeached, convicted and removed for violating their oaths of office.
We need to stop pretending that judges cannot violate their oaths (or even commit high crimes or high misdemeanors) by means of their so-called rulings or so-called judgments. They clearly can and they definitely do. We need to stop pretending or presuming that impeachment and conviction should be political or performative processes instead of legal processes governed by law.
"Courts aren't corrupt, judges are."
In a sense that is a semantic argument. However, a court system could be designed to be corrupt, which would make your statement false. That said, if a majority of justices on a Supreme Court are corrupt, then, for all practical purposes, so is the Court.
The Roberts Court has made it clear that we need major reform of the SCOTUS. Over the history of the US, the SCOTUS has made great, good, bad, and terrible decisions.
Prior to the Roberts Court decisions such as Dred Scott v. Sandford and Plessy v. Ferguson were held up as the worst of all decisions. In a few short years, Roberts, et al. have added more than one decision that not only belongs on that list, but that stand at the very top.
Last year, very conservative former appeals court judge Michael Luttig said that Trump v. United States is the worst decision ever made in US history. We are now seeing that play out as Trump, emboldened by what he sees as the SCOTUS having granted him carte blanche to do whatever he chooses to do without any risk of legal accountability, tramples the law and Constitution. Rather than placing some constraints on Trump, the SCOTUS majority has often allowed him to do things that are clearly illegal, overriding the Congress and its legitimate rights to make laws. Congress wrote laws preventing the president from firing people holding certain important positions without specific cause. The SCOTUS, ignoring those laws, gave Trump the green light, which supports Luttig's contention that Chief Justice Roberts is "leading this country down the path of lawlessness."
Lest anyone think Judge Luttig has become a liberal, he supports another SCOTUS decision that I believe belongs right next to Trump v. United States. That is the Citizens United decision, which has thoroughly corrupted our election fundraising. My choice of the all-time worst decisions includes District of Columbia v. Heller, in which Justice Scalia effectively ignored the wording of the Second Amendment in his conclusion and found what no other court had ever found -- a personal right to possess firearms.
Trump v. United States has empowered a fascist to pursue the destruction of democracy and the rule of law. In my opinion this decision is indefensible.
Citizens United has allowed the wealthy to attempt to and sometimes succeed in buying elections and it has made it necessary for some elected officials to do never ending fundraising and others to become utterly corrupt. This is another indefensible decision.
District of Columbia v. Heller has contributed to the bloodbath that exists in the US and further SCOTUS craziness has helped to erase the idea that Scalia naively suggested that supposedly allowed some regulation of guns. Since Heller, the SCOTUS has gone where Scalia had refused to go. DC v. Heller is not quite as bad as the two above, but it was poorly reasoned and tragically unwise. The limitations that Scalia suggested were possible are of no interest to the Roberts Court of 2026.
Semantics is when people speak of "courts" when they really mean individual judges. Take, for example, what people call "the Roberts' Court." That "court" is very different today from what it was when Justices Ginsburg and Breyer were on it.
Focusing corrective measures on corrupt judges is how we ensure courts perform their institutional function. That's the point of Article III emphasizing that the term of office of judges is during good behavior.
Even if "judge Michael Luttig said that Trump v. United States is the worst decision ever made in US history," it really isn't. Far worse is the decision to exaggerate the legal significance of the judgment/opinion of six mere judges in Trump v. United States. That so-called judgment and the so-called supporting opinion should be ridiculed, mocked, derided, and even flouted by federal and state officials.
Nobody who is anybody should take that so-called decision of SCOTUS seriously except to show that it does not and cannot (consistent with our Constitution) mean what you said Judge Luttig said. Consider, for example, "Our First President Strongly Supported Laws Restraining All Subsequent Presidents" https://blackcollarcrime.substack.com/p/our-first-president-strongly-supported?r=30ufvh
We should always bear in mind the observation by the French writer and diplomat Joseph de Maistre in 1811, "Every country has the government it deserves." That is nowhere more true than in the U.S. in which We the People ordained and established our own Constitution in 1788. If we fail to support and defend our own Constitution, the fault is largely our own.
I agree! The “Bost” ruling illustrates the Roberts Court’s contempt for majority rule, allowing obvious “losers” to prick, prick prick away IF they have enough MONEY to sue, sue SUE!
It’s a fascist Court with fascist money it!
We’re better off without it!
Gorsuch's opinion in the Fourth Amendment case sanctimoniously (shocking) noted how he wanted to use a neutral approach and not just allow the decision to be determined by the whims of the justices. That's all they did after Katz v. U.S., after all! He cited a common law principle. The common law is judge-made. So, it is somewhat based on the whims of judges.
I'm somewhat confused. There may be special cases, such as the ex officio member in the Kennedy case. But overall legislative standing involves a legislator. The idea, I thought, was that one legislator shouldn't speak for the legislature. OTOH, a candidate, though their interest might be too weak to warrant standing, has an individual interest. It is their campaign alone.
Yes, Jackson, for instance, argued that the people overall, the voters, also had an interest. She might be right. Still, of the two, I think a candidate at least has a better argument.
The Court’s hostility to legislative standing runs well past individual members. As for the individual candidate, the point of Bost is to allow standing even in cases in which there is no concrete, individualized harm to that specific candidate—because of his more general interest in “a fair process.” At that level of generality, the hostility to legislative standing seems much harder to defend.
“Fair” means you have enough money to hold up the electoral process indefinitely …..
How on earth do we preserve the Republic and the Constitution with a group of SCJ hellbent on destroying it? They are destroying our legislative branches' power ahead of the probable change in majority of Congress in November's midterm election. Congress must make the necessary changes to the SC to stop the biased judicial coup, preferably now, but definitely after the midterms.
It’s all about the power of the White Ruling Classes! Period!
"...then that means that the initial assignment of the majority opinions in the six remaining cases (including, as most relevant here, the Louisiana redistricting cases) went to a Republican appointee."
Hoo boy, I had missed that. Not good
You have nothing to fear, Beth. Roberts has assured us that they are merely neutral umpires calling balls and strikes, not Republican or Democratic judges, but mere humble servants of the American people, doing their best to determine the law, with no agendas, predetermined outcomes, ideologies or biases. Roberts has also assured us that each Justice might possibly maybe consider occasionally thinking about if SCOTUS' self created and unenforceable code of conduct should be consulted. Boy, I feel so much better having written this. #Sarcasm.
Q: Assuming a REPRESENTATIVE as plaintiff. Does Bost open the door a crack to enforce Section 2 of the 14th AM, most recently denied by the DC Circuit in Citizens for Constitutional Integrity v Census Bureau (With a Wilkins J concurrence saying it could happen if standing found.) ?
This decision follows on Bush v. Gore in favoring the 14th amendment rights of (some) candidates over those of the electorate, so it's unlikely to help there. As Steve notes, it's also doctrinally incoherent, like a system of logic where anything can be proved by exploiting inconsistencies.
I'd also identify Bush v. Gore as an inflection points of sorts where SCOTUS really took on in earnest inventing out of whole cloth new doctrines disrespecting the legislature.
It seems right that individual legislators ought not be able to challenge laws they believe dilute their authority (line item veto), but it seems problematic that they cannot sue the executive branch for failing to observe laws in ways that dilute their power. In the first case, they cannot sue always persuade a majority to change the law. But in the second case, it’s like the Court is telling lawmakers they have to persuade a majority to pass a new law to enforce one already on the books. If no one else has standing, the law is meaningless without more congressional action. Doesn’t seem right.
Steve,
Superb analysis of Bost opinions with legal, historical, political context. We are in this together. No Kings/Queens/Shahs. Peace. Christopher and family
Thank you for this, Steve. I appreciate all the specificity and your explanations.
Justice Kagan voted with the majority. Of the three justices appointed by Democratic presidents, Kagan is the most likely to join questionable decisions.
If I knew nothing about this case or how the justices voted except that Kagan was with the five, my guess would be the Chief Justice wrote the opinion, Jackson and Sotomayor were in one of the groups of two and Alito and Thomas were the other two. I haven't looked that up yet, but the only other justice I would think could be a part of a two grouping would be Gorsuch. But, then, I would be at a loss to guess who wasn't in that grouping -- Alito or Thomas. I have to go out now, but when I get home I will look up the vote breakdown. Will I be surprised?
Truthfully I only understood the Supreme Court is not alining itself to previous decisions. If there was more someone would like to explain to me I would appreciate it. 😁
It seems clear that the current SCOTUS is out of step with Constitution. If the framers had believed in the Unitary Executive, it seems likely they would have created the Executive and described its powers in Article I, not Article II. I think the fact that the Congress has the power of oversight of the Executive branch and can, at least theoretically, remove a sitting president, renders the Unitary Executive's theory of presidential power empty.
In Marbury v. Madison, the Chief Justice essentially seized power that the Constitution had not given the SCOTUS. On one level that makes sense; there does seem to be a need to have a way to ultimately resolve difficult legal and constitutional questions. While I hesitate to write this in light of what the US Congress has done to itself by endlessly ceding power to the Executive and the reality of how divided this country is today, I do wonder if a constitutional amendment allowing a super majority of Congress to overrule the SCOTUS would make sense. No, I'm no pretending that amendments are likely or even possible in our current environment. However, if Congress passes laws such as the ones that SCOTUS ignored allowing Trump to fire legally protected individuals, then why would either party oppose an amendment protecting the powers of the legislature? I don't think the Democrats would, but who knows about the GOP -- it barely exists as an entity separate from the wishes of Trump.
Personally, the greatest weakness I see in this country is the electorate. November 5, 2024, demonstrated to me conclusively that our electorate in general is simply not up to the task of responsibly supporting democracy. Ignorance is a huge problem. Most Americans are extremely poorly informed about history, political science, and economics. The 2024 election also revealed an electorate that, in the absence of adequate knowledge and engagement in the system, can be swayed by wishful thinking. Relatively few voters last year had any real understanding of why and how we had faced post-pandemic inflation. Instead, they foolishly chose to blame the incumbent president and then compound their error by choosing to believe the frankly ridiculous promises of the most notorious liar in American political history. That hasn't changed. I can easily imagine a situation in which the Democrats take control of the House in 2027, wins majorities in both houses as well as the presidency in 2028 and then four years later after four years of Republicans obstructing the Democrats at every turn, the voters elect another right wing crazy to be president in 2032.
The Democrats' success in special and gubernatorial elections in 2025 were not, I believe what many Democrats want them to be. The Democratic Party is historically unpopular and disrespected. I am a life-long Democrat, but today I have no confidence in a party that is satisfied with the weak leadership of Chuck Schumer and Hakeem Jeffries. Schumer's idea of fighting for democracy in the face of an existential threat is to send a "sternly worded letter" to Trump. Both Schumer and Jeffries showed their weakness and lack of foresight by failing to give Zohran Mamdani the respect and support he deserved. Democratic congressional leadership is simply not up to the task before it. Once again, the electorate is at fault. Democrats don't have to elect weak candidates and Republican voters don't have to elect fascists, authoritarians, and absolute nut jobs. But they do.
"I do wonder if a constitutional amendment allowing a super majority of Congress to overrule the SCOTUS would make sense."
Many members of Congress have little or no understanding of the Constitution, or no respect for it. At least the Supreme Court justices are knowledgeable in that regard, even though some of them refuse to be impartial.
Given the polarized state of our society, a super-majority of Congress agreeing to override the Supreme Court would probably never happen anyway. There are obvious problems with our government, but lacking a benevolent higher being controlling things, it's not clear to me that there's a better approach. As you indicated, I think the problem ultimately stems from a lack of civics education and a lack of respect for the Constitution among the people.
John, I believe a lack of respect for the Constitution has also infected the six members of the extreme right wing majority. In his book, "Worse than Nothing," constitutional scholar Erwin Chemerinsky makes a compelling case the "Originalism" is worse than having no theory of jurisprudence at all. I consider "Textualism" to be similarly worthless and fraudulent. Those who claim to believe that decisions should be made on the basis of originalism or textualism frequently abandon them in order to arrive at decisions that fit their own desired outcomes. However, using originalism is no better than having no theory of constitutional jurisprudence at all, and Chemerinsky gives many examples of the SCOTUS ostensibly applying originalism, but arriving at a decidedly non-originalist decision. The same is true for textualism.
Textualism requires that the justices take into account the actual words used in the Constitution and their meanings at the time they were written. It should go without saying that the language has changed greatly since the late 1700s and pretending that we understand today the precise meaning of words used 2-1/2 centuries ago is problematic. The right wing justices have also argued that we not consider the "intent" of what was written, but we repeatedly see them doing that when it suits their purposes.
Relying on words that were written so long ago and considering them in a bubble that doesn't take into account the huge changes in society and our sensibilities since then leads to decisions that make little sense in the modern world.
In 2025, very conservative* former appeals court judge Michael Luttig offered his opinion of what the Roberts Court is doing. He said that he considers Roberts to be a friend, but that the Roberts Court "is leading this country down he path of lawlessness." He added that he considers Trump v. United States to be the single worst SCOTUS decision in our entire history. The framers made it amply clear that they were creating a secular government, but Alito, Barrett, and the other religious zealot are trying to change that.
Thanks for your reply. I agree with much of what you wrote; it's just that I think the main problem is a lack of understanding of and respect for the Constitution among voters, politicians and (some) Supreme Court justices. Free speech is a good example, as many people at both ends of the political spectrum don't respect First Amendment speech rights and don't seem to appreciate their importance.
But I doubt that there's another way to structure government that would be much better at avoiding the problems we're facing, apart from one or two specific modifications (e.g., the electoral college).
I'm not a legal scholar, but I agree that pure originalism and pure textualism are inappropriate, though we of course need to consider the original intentions and the meaning of the words, otherwise we would be ignoring the Constitution (or laws) altogether, which would lead to an even worse mess.
My sense of the problem goes back many years (decades) and it has gotten worse. Everything good and bad can depend on the quality of the electorate. When I was in college, majoring in political science, I began engaging average voters in conversations about politics. Many of the people I engaged with were university students. What I discovered early on was the severe lack of knowledge about all the relevant topics and issues and a significant lack of interest in knowing and understanding more. My goal was to move people in the direction of being more involved and in the process in learning more of what they needed to know in order to voter responsibly.
I used to joke that I voted 5 or 6 times in every election, because I convinced 4 or 5 to 1) vote when they hadn't planned to vote and 2) to vote for candidates who represented their own best interests and not those of their parents, which was common among young people who either didn't vote or had adopted the political positions and party of their parents.
Today, he situation is far worse. The people most in need of change -- Trump voters -- generally refuse to even discuss the issues. My favorite quote of all time came from my neighbor back in 2020 as we neared the presidential election. I knew that Donnie (he’s dead now, so there is no risk in providing his first name) had voted for Trump in 2016 and that his number one and possibly only issue was guns. He never went anywhere without his handgun on his hip and he was convinced that the Democrats were going to take his guns away. I was prepared to help him understand that there was no danger of that happening and to try to get him to realize that on virtually every other issue Trump was bad for him.
Donnie was a nice guy. He was kind and generous and had a wonderful symbiotic relationship with another of my neighbors, an elderly woman in her 80s. Laurel Ann, offered Donnie a place to live and in return he helped her with her gardening and other things. She despised Trump, so they didn’t discuss politics.
Donnie and I started to talk and I began by laying out some facts that made it clear that Donnie’s situation would be hurt by all of Trump’s policies apart from the gun issue. After some initial comments from me, Donnie interrupted me and said, “You obviously know a lot, so I’m not going to talk to you.”
That ended my efforts. Since most Trump voters are “low information” voters and many are not overly intelligent, they are as reluctant to discuss politics as was Donnie.
In 2024, everything that any half-way intelligent person needed to know to reject voting for Trump was already well and widely known. We had seen his performance in his first term and how that had ended up on January 6, 2021. The Washington Post had tracked Trump’s lies and compiled a list of over 30,000 lies and misleading states in four years. His complete lack of truthfulness was documented as was the judgment against him for sexually assaulting E. Jean Carroll. In any normal, healthy democracy Donald Trump would never get the nomination to lead the country.
Trump made a series of ridiculous “on day one” promises that no reasonable person should have believed at all. Few Americans know much about economics or what causes inflation and who or what is responsible for it. It is very likely that almost no average voters knew that inflation had not been limited to the US and that it was worse in Europe, which should have been a hint that it wasn’t Joe Biden’s fault. I’ll stop here with the observation that no informed voter should have believed that Trump would tame inflation or only deport the “worst of the worst” immigrants. Wishful thinking, not rational thought determined millions of voters and resulted in the most irresponsible elections results in our history.
The wider problem is that when ill- or mis-informed voters cast mindless, irresponsible votes, we end up not just with a criminal as president, but countless Republicans in the House and Senate who care nothing for the well-being of their constituents. Electing bad presidents and senators means the appointment of bad judges and justices. What that means is that the real problem in this country is not Trump or his lawless sycophants. It’s not Republicans who aid and abet Trump. And it’s not the six ultra radicals on the SCOTUS. The real problem is the electorate. And of the four – Trump, Republicans, the SCOTUS, and the electorate – the most difficult one to fix is the electorate, in part because voters have to want to be better informed and be willing to expend the effort to achieve that.
My final words in this overly long comment are that the overwhelming number of American voters have no desire to spend the time needed to improve their knowledge and understanding, which would lead to more responsible voting, better candidates elected, and a vibrant democracy.
Hear, hear!
Sadly, we are showing the world the real makeup of the USA, personally I fear this will be impossible to "recover" from. Additionally, with the slow implosion of the Internet, I can't see the people returning to the libraries for truth.
"Sadly, we are showing the world the real makeup of the USA..."
A Canadian news host on CBC made a comment that I think is important. David Cochrane, host of CBC News Network’s daily “Power & Politics” said:
“America isn’t the way it is because [Trump is] president. He’s president because America is the way it is.”
One of my long-time gripes has been about "American Exceptionalism." To me, America is just another country. Sometimes is does good and sometimes bad. Because we are a large, wealthy country our actions may have a far wider impact than the actions of smaller countries and we have chosen to involve ourselves in the affairs of other countries to a greater extent than other countries. And it is precisely some of those actions that are among our very worst deeds. Going way back we have the US engaged in the overthrow of Mosaddegh in Iran. The situation in Iran today can be traced back to that despicable act, which was carried out in order to benefit our oil companies. Similarly, we were involved in the overthrow and death of another democratically elected national leader -- Allende in Chile. We have never been a consistent respecter the democratic elections in other countries. What we did in Vietnam, Iraq, and Afghanistan are three other examples of our shameful history. (I won't go all the way back to the creation of this country whose foundation was built on land theft, treaty breaking, genocide, and slavery. So that I'm not accused of ignoring any of the good things we've done, there is WWII, which is included more bad deeds as well as good. Locking up the Japanese Americans and stealing their belongings doesn't fit in a positive category. The Marshall Plan, creation of the UN, which has been followed by a refusal of the US to agree to any accountability by international organizations such as the ICC.
Some of what Trump is doing today is not that different from things we've done in the past. The major difference is that despite his bringing peace to 1,004 conflicts (derisive laughter), there are no positive acts that can be attributed to Trump. And one thing we can be certain of it that Trump never does anything to benefit others, unless the primary beneficiary is Trump himself.
The idea of American Exceptionalism is, sadly, the product of arrogant delusion. David Cochrane, quoted above, is absolutely right and perhaps the major contributing factor to the truth of his statement is the pathetic condition of our electorate. We have an electorate that is woefully educated on a wide range of issues that determine the responsibility of our voting and quality of the people we elect. Today, after a year of Trump's violence, cruelty, and lawlessness, the most common response I get when I try to engage people in political discussions is, "I just don't want to think about it." Many of those people are nurses and doctors who should be intelligent enough to understand the costs of ignoring our current situation.
I've got to stop. Another too long comment, but this represents only a fraction of what I have to say about Trump, voters, and American Esceptionalism. My apologies. (Although everyone has access to TLDR.
I like your textual arguments against a unitary executive!
Congress does have power to overturn an unconstitutional ruling, by passing a law that complies with the text & says the opposite of the ruling. Some are trickier than others but they could end CitizensUnited by passing 100% public campaign funding.
Still reading your YLR note, slow but getting there...
But why does anyone cite Luther v Borden, 48 US 1 (1849)? The Court blew an easy one.
When a state breaks up into two factions with competing governments, biasing the state courts toward whichever one they’re in, it no longer meets the standard required for statehood. It is now governed by Congress directly under Article IV §3’s Territory and Property clause, though they should probably just order the territory to hold another election to decide since only that can restore it to statehood. If the factions refuse to reconcile after that, Congress must consider breaking it up into two states.
If none of this occurs to Congress, a US court must decide the relevant constitutional question, holding Territory and Property is the relevant clause, then ordering Congress to deal with it and maybe hinting about another election.
We feel a sudden reckless urge to respond to some of the Luther Court’s stream of excuses for failing to read plain text.
"[T]he President must, of necessity, decide which is the government and which party is unlawfully arrayed against it before he can perform the duty imposed upon him by the act of Congress."
That’s not the president’s job.
"[I]f this court is authorized to enter upon this inquiry as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its legislature during that time were nullities, its taxes wrongfully collected, its salaries and compensation to its officers illegally paid, its public accounts improperly settled, and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not, in some cases, as criminals."
It is that way sometimes. Checks and balances.
" In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice."
False. If the Senate declines to consent, the president cannot override them. BTW, foreign and domestic are hardly analogous. The people of the United States are the source of all sovereignty.
"[I]t would be difficult, we think, to point out any other hands in which this power would be more safe…And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide."
First clue: A CJ knows the people may not choose presidents. Abdication cloaked in creepy royalist hyperbole.
"After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right?"
The US courts decide constitutional questions. The Supreme Court reviews them.
"If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavouring to maintain."
The fact that the president can be wrong is as good a reason as any not to commit troops to presidential command prematurely.
"If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order."
Cringe. Read the text.
It's been a busy day. Glad I suddenly remembered One First.
Here's the part of Chief Justice Roberts' rationale that really struck a chord for me: "Thus, the long-shot and shoo-in alike would suffer harm if a State chose to conduct its election by, say, flipping a coin. The result of such an election would not reflect the will of the people, and the candidates would lose the opportunity to compete for the people’s support. So too, similar harms would result from less dramatic departures—for example, if a State decided to discard a random 10% of cast votes. Whether these decisions help, hurt, or have no effect on a candidate’s electoral prospects, they deprive the candidate of a fair process and an accurate result."
How is the evil in Bost, "an election would not reflect the will of the people" different differ from the effects of a gerrymander that assures that one group of people, despite living in a reasonably contiguous area, will be assigned to multiple districts to assure that their collective will can never control the outcome of an election. It appears that this sets a precedent that rigging an election on the front-end is constitutional, but choosing a mechanism that may rig it on the back end may be actionable.
I have neither the time nor the resources to go back through the gerrymander cases to see whether the Bost rationale can be reconciled with existing gerrymander jurisprudence. It seems quite clear, though, that it's a rhetorical loser.
To clarify, I understand the distinction between standing and justiciability. But the original deference to state control over elections encompassed both the making of districts and the manner of conducting elections. The debates show that Madison and other delegates was quite aware that states were capable of manipulating internal rules or districts to control the selection of legislators -- an insight that Virginia antifederalists would soon confirm when Virginia drew districts for the 1789 elections that carried Madison back to the national legislature. The report of the Committee on Reconstruction plainly shows that the framers of the 14th Amendment expected that the vote freed slaves would provide a counterweight to that of the secessionists and their sympathizers and would prevent the return to power of those who controlled Antebellum Southern politics. Providing means to assure that results fairly reflect the diverse interests within every state has always been a challenge and has always been essential to assembling a national legislature that reflects the diversity of the American people and, therefore, can both strike compromises acceptable to the majority of Americans and serve to check and balance the other branches of government. Chief Justice Roberts seems to intimate in Bost more than that a candidate has standing, but also that rules governing procedures to collect the vote differ from those involving how votes are aggregated by district. The injury is the same in both cases, and the ancient debates over the purposes of elections and the ways that elections safeguard the Republic lay down principles that can inform adjudication in both cases. The difficulty presented by the Bost rationale seems to me likely to be both telling and real.
Hi, Steve!
re: Bost v Illinois Bd. of Elections, 607 US ___ (2026)
Illinois law defines an election as primarily voters’ conduct. Their acts of casting votes & submitting these to government are the election. Tabulation & certification are government’s post-electoral functions. Because USPS is government its receipt is receipt; since delivering posted mail is its governance function, it’s presumed the talliers will receive it. The two-week time limit is for efficiency and regularity.
Article II§1 confirms this. Each state’s electors cast their votes for president & VP, tally these in two lists, & send them to the Senate. The election concludes. (No state certification is expressed, & since it’s a US election a state law requiring state certification can’t affect the result or when the election ends.) Congress receives, tallies, & certifies the ballots as post-electoral functions. When they resolve a tie or plurality it’s from among the top 2 or top 3 b/c those were the election’s results.
BTW, I actually agree with Mr. John Roberts, CJ, on Bost.
Amendment I’s Petition clause makes no exceptions, expressing government may create no circumstance in which its action can aggrieve a person w/o affording a manner for seeking redress. And Roberts makes the critical point: An election can’t be rerun. Few acts of governance are final, but finality doctrine seems consistent (you may know of exceptions I don’t).
The availability of appeal bars suing a court on the merits of a decision. Finality hasn't obtained.
Double jeopardy, res judicata & collateral estoppel cover the finality of one stage of a case. A trial court’s decision may be appealable but as far as the trial stage, it's final.
Ex post facto laws are prohibited because it’s too late to change relevant conduct to comply with them. The conduct is already final.
An election is final. No action can correct its conduct once it concludes. The only time a candidate can object is beforehand. Standing must account for finality. If a person demonstrates an interest in a fair result by registering as a candidate, that action has to be enough.
Another election won’t be this election. While for some laws, rules, or practices it may be difficult to imagine a person proximately affected, electoral laws, rules, & practices are the opposite. They affect EVERY candidate proximately. A candidate for office A in jurisdiction C in election year E has particular interests in office A, jurisdiction C, year E, their combination, & their combination with that candidate’s own career, so unfairness in election ACE a particular injury.
Office A is particular. A US senator differs from a mayor in powers vested, resources available, and so on. And a candidate’s personality and circumstances might better suit them for one office than another.
Jurisdiction C is particular, its combination with Office A more so. A vital issue for a US senator from New York may not matter to a US senator from Louisiana, and may not even be on the radar of the mayor of New Orleans.
Election year E is particular. The matters the NYS Senate had to legislate in 1976 differed from those facing them in 1960, & since rules, the NYS Senate’s composition, & other variables also differed, a person who’d seek that office in 1960 might not have in 1976 even with a better chance of winning.
The stage of a candidate’s career coincides with A + C + E in a particular manner. Their level of name recognition, their party’s importance, & the breadth of support for their policy positions are among the variables. An example from history: After his 1847-49 term in the House, the legal advice of Mr. Abraham Lincoln was sought in major cases. He argued before the Supreme Court. Elected to the Illinois Senate in 1854 he declined to take his seat, choosing instead to run for the US Senate. He lost. In 1858 he ran again & lost again, but his powerful performance that year in debates against incumbent Mr. Stephen Douglas made him a viable presidential candidate in 1860. His interest in the 1860 presidential election included the office’s particular powers and mandates when the question of slavery had reached a boiling point, Southerners were talking secession - & at that point in his career running was viable, winning possible, & he had no other commitment.
Finality isn’t usually relevant in a constitutionality challenge, whether the filer is a legislator or a member of the public. Spending impounded funds later isn’t as good as spending them on time but the basic job can still be done. Money improperly expended can be clawed back. Either corrects the usurpation & can redress either grievance. (Of course, not everything can be clawed back. Exercising the war power kills people. But Congress’ own abdication is a factor there. They’ve had time to correct it.)
In Raines v Byrd the legislators had no standing because they hold power to serve their constituents, not to personally enjoy. Once Mr. Clinton aggrieved people with the veto it was held to violate Presentment, a separation of powers holding. Candidates run to ultimately serve, but until the constituents decide it’s a personal competition for their votes.